Legal thoughts, since 2005.

social media

Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Pennsylvania court on social media evidence authentication

Social media use is pervasive. People communicate online many times everyday. Importantly, those online interactions create digital footprints that can prove to be invaluable - and sometimes detrimental to - litigation.

Of course, the somewhat transient and unverifiable nature of online engagement can present problems for lawyers seeking to use social media evidence during litigation. Because it’s so easy for people to interact anonymously or to impersonate others online, lawyers sometimes encounter difficulties when attempting to authenticate social media evidence at trial.

The Superior Court of Pennsylvania recently provided some guidance in this regard in Commonwealth v. Mangel, 2018 PA Super 57 (2018). In this case, the court was tasked with determining what proof was required to authenticate “social media evidence, such as Facebook postings and communications.”

In reaching its decision, the Court reviewed Pennsylvania appellate court cases that addressed the level of proof needed to authenticate other types of electronic evidence, such as text messages and emails. The Court acknowledged that although social media information is similar to other electronic evidence, it also poses unique challenges “because of the great ease with which a social media account may be falsified, or a legitimate account may be accessed by an imposter.” For that reason, the authentication process for social media evidence must necessarily address those issues and provide a level of certainty regarding account ownership and authorship issues.

Of course the issue then becomes: What level of certainty is required to sufficiently eradicate any doubts regarding those issues? The prosecution asserted that the trial court applied the incorrect standard in this regard when it considered whether there was a “reasonable degree of certainty, reliability, scientific, technological certainty” that the Commonwealth had satisfied the requirements for authentication of the Facebook records.”

Notably, the Court disagreed with the prosecution, concluding that the trial court applied the correct standard: “(I)t is clear that the trial court…applied the proper standard in determining whether the Commonwealth had presented sufficient direct or circumstantial evidence that Mangel had authored the Facebook messages in question.”

Next, the court clarified how to apply that standard to social media evidence, and provided guidance for lawyers seeking to authenticate social media postings: “Initially, authentication…(of) social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity…Additionally, the proponent of social media evidence must present direct or circumstantial evidence that tends to corroborate the identity of the author of the communication in question, such as testimony from the person who sent or received the communication, or contextual clues in the communication tending to reveal the identity of the sender.”

Finally, the Court applied that standard to the case at hand, upholding the trial court’s determination that the prosecution failed to properly authenticate the social media evidence at issue: “(T)he Commonwealth presented no evidence, direct or circumstantial, tending to substantiate that Mangel created the Facebook account in question, authored the chat messages, or posted the photograph of bloody hands. The mere fact that the Facebook account in question bore Mangel’s name, hometown and high school was insufficient to authenticate the online and mobile device chat messages as having been authored by Mangel. Moreover, there were no contextual clues in the chat messages that identified Mangel as the sender of the messages.”

So, whether you practice in Pennsylvania or elsewhere, the guidance provided by the Court in this case is instructive. If your client’s case hinges on a particular piece of evidence obtained online, the more proof you can offer to establish the identity of the person responsible for creating the online posting, the better. A multi-faceted approach to establishing authorship is advisable rather than relying on forensic or contextual evidence alone. Certainly forensic evidence alone will be enough in some cases, but not all - and as I always say, better safe than sorry.

The phenomenon of social media has infiltrated all aspects of our lives, so it’s not surprise that social media evidence is now a pivotal tool in litigation. Juror use of social media has resulted in mistrials across the country for more than a decade now. And trial attorneys are increasingly mining social media for evidence and researching jurors online.

Not surprisingly, the rising practice of using social media information during litigation caught the attention of ethics committees some years ago, and the first opinion on this issue was handed down in 2009. Since then, I’ve regularly covered these opinions in this column, and recently realized that I’d overlooked one that was issued by the Maine Bar’s Professional Ethics Commission last November: Opinion 217

In the opinion, the Commission addressed both the ethics of mining social media for evidence and researching jurors online. Another issue covered was whether lawyers may connect with judges or quasi-judicial officers on social media sites.

At the outset, the Commission acknowledged that defining social media is a difficult task, since “(t)he functionality, technology and content available on the platforms that make up “social media” likely will continue to evolve dramatically in the future.” Even so, it attempted to offer a rather broad definition, defining social media networks as sites that “are used primarily for connecting socially with multiple ‘friends’ and for sharing a wide range of personal, professional and editorial information using text, links, photographs and video,” while specifically excluding sites that “lack the type of sharing of non-public information with ‘friends’ selected by the profile holder, which characterizes social media platforms.”

Next the Commission turned to using social media to obtain evidence for a pending case. The Commission sided with the majority of other jurisdictions in concluding that all publicly viewable social media information is fair game and may be viewed without issue. But for unrepresented parties, data found behind a privacy wall may only be accessed if attorneys or their agents, when making the connection request, “affirmatively disclose the purpose of the contact.” Represented parties were a different story, and all private information found behind the privacy wall was found to be off limits since any attempt to connect in order to access that information constitute impermissible communications with a represented party.

The Commission also sided with the majority of jurisdictions on the issue of whether passive notifications (like those sent by LinkedIn when someone views a user’s profile) sent by social networks to jurors constituted an impermissible communication. Like the American Bar Association Committee and the DC Bar Committee (and in contrast to the position taken by the New York State Bar Committee), the Commission concluded that only publicly viewable information could be accessed and that passive notifications to jurors sent by social media sites did not constitute impermissible ex parte communications since “any other approach would be unworkable as a practical matter and would subject attorneys to potential ethics violations based upon the happenstance of user settings or new technologies that generate automated messages outside of the attorney’s reasonable knowledge or control.” However, the Commission cautioned that “where an attorney knows or reasonably should know that accessing any social media of a juror will result in such juror becoming aware of the attorney’s access, the attorney should refrain from accessing that social media, (and) (i)f the attorney learns that any juror…has become aware of (it), the attorney must notify the Court…(which) may find it advisable to provide a cautionary instruction…”

Finally the Commission weighed in on lawyers connecting with judges online: “Attorneys are permitted to connect with judges and other judicial officers through social media, but they are precluded from having ex parte communications with, or from attempting to impermissibly influence, such judges or judicial officers through social media.” Once again, this was in line with the position taking by most other jurisdictions on this issue.

As more jurisdictions address these issues, commonalities arise in the analysis and conclusions reached. In this case, the Commission wisely acknowledged the rapid pace of technological advancement and incorporated that concept into the context of its determinations. Hopefully committees in jurisdictions that have not yet addressed these issues will follow suit, since guidelines on ethical use of technology that have flexibility built in are more likely to withstand the test of time.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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New York Court of Appeals on discoverability of Facebook messages

For litigators, social media platforms have increasingly become an invaluable source of evidence. So it’s not surprising that discovery disputes often arise regarding the scope of requests for social media-related information.

Last month, one of those discovery disputes reached the New York Court of Appeals in a negligence case relating to injuries that the plaintiff suffered after a fall from a horse. In Forman v. Henkin, the plaintiff alleged that the injuries were caused by the negligence of the defendant and owner of the horse. During the course of discovery, the defendant sought access to the plaintiff’s entire Facebook account - including information that was located behind the privacy wall that could be seen only be the plaintiff’s “friends” and, presumably, private Facebook messages as well - after she’d made reference to the Facebook data during a deposition. At issue was whether the information behind the Facebook privacy wall was relevant to the issues at hand and thus discoverable.

At the outset, the Court wisely acknowledged that that the online was no different than the offline when it came to the application of the standards governing discovery requests: “While Facebook – and sites like it – offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.”

Next, the Court clarified that the appropriate determination to be made when a party seeks evidence found on social media platforms is whether the information is relevant to the issues in the case. The court explained, “New York discovery rules do not condition a party’s receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information…In many if not most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence. Thus, we reject the notion that the account holder’s so-called ‘privacy’ settings govern the scope of disclosure of social media materials.”

The Court cautioned, however, that a discovery request for social media-related information does not trigger mandatory disclosure of all posts. The Court then turned to an offline equivalent to make its point: “Directing disclosure of a party’s entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation – such an order would be likely to yield far more nonrelevant than relevant information.”

The Court then explained that a 2-prong inquiry should be made by courts considering motions relating to discovery requests for social media data: “Courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials…Temporal limitations may also be appropriate – for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation.”

Unlike some other New York courts that have addressed these types of issues, the court did not differentiate between social media posts behind a privacy wall that are viewable by all of the person’s “friends” versus private messages sent only to one person. Instead, the court put the onus on the plaintiff to take measures to prevent disclosure of “sensitive or embarrassing” information explaining that “the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.”

Overall, this was an instructive opinion that provides necessary guidance to New York litigators seeking to use social media evidence in their cases. That being said, I do wish that a distinction had been made regarding the different types of posts on Facebook, rather than grouping all non-public posts made behind the privacy wall together. Private messages between two people are, as one Appellate Court judge has noted in the past, more akin to diary entries and thus may not be discoverable absent a greater showing of relevancy. Nevertheless, the highest court in New York has spoken. New York litigators, take note.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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ABA on Client Confidentiality in the 21st Century

These days, news is shared in many ways, with online news outlets and social media sites contributing to the rapid - and sometimes viral - dissemination of information. Not surprisingly, details distributed online can sometimes trigger client confidentiality issues. For that reason, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility (“Committee”) recently addressed the duty of client confidentiality owed to former clients when information about a client becomes “generally known” after being shared online and through other news channels.

In Opinion 479, the Committee considered an exception to the client confidentiality relating to former clients. Specifically the Committee examined the exception found in Model Rule 1.9(c)(1) that permits lawyers to use information that is “generally known” to a former client’s disadvantage despite lack of consent from the former client.

As the Committee explained, Model Rule 1.9(c)(1) provides that a lawyer shall not use information relating to a former client’s representation ‘to the disadvantage of the former client except as [the Model] Rules would permit or require with respect to a [current] client, or when the information has become generally known.”

The primary issue considered in this opinion revolved around defining the concept “generally known.” At the outset, the Committee explained that there was a distinction between “publicly available” and “generally known”: “Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes.”

Next, the Committee acknowledged that modern technology has made its mark on this concept, explaining that information “may become widely recognized and thus generally known as a result of publicity through traditional media sources, such as newspapers, magazines, radio, or television; through publication on internet web sites; or through social media.”

Next the Committee provided insight into how information becomes generally known in the context of a client’s chosen career: “(I)nformation should be treated as generally known if it is announced, discussed, or identified in what reasonable members of the industry, profession, or trade would consider a leading print or online publication or other resource in the particular field. Information may be widely recognized within a former client’s industry, profession, or trade without being widely recognized by the public.”

The Committee explained that in that context, knowledge of the matter by the general public is irrelevant. The Committee offered the insurance industry as an example and indicated that what truly mattered was whether the information had been broadly disseminated in that industry: “For example, if a former client is in the insurance industry, information about the former client that is widely recognized by others in the insurance industry should be considered generally known within the meaning of Model Rule 1.9(c)(1) even if the public at large is unaware of the information.”

The Committee then summarized its analysis and conclusions as follows: “(I)nformation is generally known within the meaning of Model Rule 1.9(c)(1) if (a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession, or trade.”

This opinion offers much-needed clarification for lawyers regarding client confidentiality issues in the digital age. The times are undoubtedly changing as the online world speeds up and amplifies the dissemination of information. Certainly the end result is that the internet may muddy the waters a bit when it comes to lawyers’ ethical obligations. But as this opinion shows, despite the rapid pace of change, lawyers’ ethical obligations nevertheless remain constant, whether applied online or offline.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Social media has been around for more than a decade. At first lawyers ignored social media, but over time, as it infiltrated our culture, they sat up and took notice. Today, more lawyers than ever use social media. Some use it for networking and marketing, while others interact online to showcase their expertise or gather valuable evidence and information to support their practices, among other reasons.

Regardless of how or why lawyers use social media, the statistics from the 2017 American Bar Association’s Legal Technology Survey Report show that, generally speaking, the number of lawyers using social media has increased year over year, which is in line with the increase in the use of social media by the general population as a whole.

For starters, the use of blogs by law firms is increasing, with large firms leading the way. 71% of firms with 500 or more attorneys maintain at least one blog (compared with 60% in 2016, 58% in 2015, and 62% in 2014), as do 71% of firms with 100-499 attorneys (compared with 52% in 2016, 53% in 2015, and 47% in 2014). Mid-sized firms with 10-49 attorneys were next at 38%, followed by small firms with 2-9 lawyers at 25%, and solo law firms at 15%. The practice areas within firms that were most likely to maintain a blog were employment and labor law at 33%, personal injury law at 32%, and litigation at 31%.

When it came to lawyers who personally maintained a blog for professional reasons, however, the numbers were flipped. Solo lawyers led the way: 15% of solo lawyers blogged, followed by 11% of lawyers from firms of 2-9 lawyers, 11% of lawyers from firms of 100 or more attorneys, and 10% of lawyers from firms of 10-49 attorneys. Of those lawyers, 43% have had a client retain their services because of their blogging efforts.

Moving on to social media, 77% of lawyers surveyed indicated that their firms maintained a social media presence. And, 81% of lawyers reported that they personally used social media for professional purposes.Interestingly, the age group of lawyers most likely to maintain a personal presence on social media was 40-49 years olds (93%), followed by 40 and under (90%), 50-59 (86%), and 60 or older (73%). Lawyers with the following practice areas were most likely to personally use social media: employment/labor (89%), personal injury (84%), litigation (84%), commercial law (82%), and contracts (81%).

The most popular social network used by lawyers for professional purposes was LinkedIn, with 90% of lawyers reporting that they maintained a profile. Next was Facebook at 40% and then Twitter at 26%. Two lawyer directories were included in the Report, Martindale and Avvo, with only 21% of lawyers reporting that they used each platform.

Of those lawyers who maintained a personal presence on social media, 27% have had a client retain their legal services directly or via referral as a result of their use of social media. Solo and small firms lawyers were the most likely to be retained due to their social media presence. Lawyers in firms of 2-9 lawyers came in first in this regard at 33%, followed by solo lawyers (32%), then lawyers from firms of 10-49 lawyers (22%), and finally lawyers from firms of 100 or more lawyers (18%).

All in all, this year’s report provided lots of interesting data about lawyers’ social media use. Whether you’re a solo lawyer or are part of a much larger law firm, social media can be a valuable tool. My hope is that some of the statistics above will help guide you in making the best use of social networking. The trick is to use social media wisely, and ensure that the time you spend interacting online is both efficient and effective.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Florida Court on judges and Facebook friends

Courts and ethics committees have been grappling with the issue of judges using social media for years now. At first, the general consensus seemed to be that judges should avoid social media at all costs since any online connections compromised the judge’s appearance of impartiality.

For example in 2012, Florida’s Fourth District Court of Appeal reached this very conclusion in Pierre Domville v. State of Florida, No. 4D12-556 and disqualified a judge from overseeing a case because the judge was Facebook “friends” with the prosecuting attorney.

In my Daily Record article about this case, I disagreed with this conclusion, explaining that: “Judges are human beings with lives outside the courtroom. They have preexisting friendships with attorney colleagues that didn’t cease to end when they became judges. To issue ethics decisions that prevent judges from interacting on social media with the very same lawyers with whom they regularly interact in public is nothing short of ridiculous. Let’s hope Florida remains in the minority on this issue.”

Fortunately, as time advances and social media use permeates our culture, opinions on judges using social media are likewise changing with the times. Case in point: the an opinion recently issued by the Third District Court of Appeal in Florida, which expressly conflicted with the the Fourth District Court of Appeal’s determination in Domville.

In reaching its determination on the issue, the Court noted that a friendship between a judge and an attorney is typically insufficient, in and of itself, to present an inherent conflict of interest: “(W)e note as a general matter, that “allegations of mere ‘friendship’ with an attorney or an interested party have been deemed insufficient to disqualify a judge.”

The Court also wisely acknowledged that the rate at which social media and its many platforms has changed over the years necessarily affected its analysis in the case at hand: “(E)lectronic social media is evolving at an exponential rate. Acceptance as a Facebook ‘friend’ may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook ‘friends’ varies greatly.”

Next, the Court turned to the issue of assessing the nature of a Facebook friendship in the present day and explained that a connection on Facebook does not necessarily indicate a close personal connection: “A random name drawn from a list of Facebook ‘friends’ probably belongs to…(a) casual friend; an acquaintance; an old classmate; a person with whom the member shares a common hobby; a ‘friend of a friend;’ or even a local celebrity like a coach. An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.“

As such, the Court concluded that it was departing from the holding in Domville and was declining to disqualify the judge in the case at hand: “Because a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word, we hold that the mere factthat a judge is a Facebook ‘friend’ with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend.’ On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.”

It’s heartening to see courts and ethics committees changing with the times and issuing opinions that reflect the current state of social media and technology. Our society is being transformed by the Internet and technology at a rate never before seen. It’s not always easy to keep up, so kudos to Florida’s Third District Court of Appeal for setting a great example and keeping pace.

The Court struck down a North Carolina criminal statute on First Amendment grounds. The law provided that registered sex offenders who used social media sites that could be accessed by children could be convicted of a felony. Although the majority’s holding itself was notable, even more interesting and groundbreaking was the language used by the court in reaching its decision.

At the outset, the majority confirmed the far-reaching impact of the internet and social media on our society, and importantly acknowledged that when issuing rulings related to technology, courts must understand that it is ever advancing and always changing: “While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.”

Next, the majority turned to social media and noted the potential it has to amplify each and every person’s message, allowing everyone an opportunity to be heard.”These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’”

The majority then engaged in what I consider to be the hallmark of every well-decided opinion involving issues related to internet activities: analogized the online conduct to similar offline conduct:. The majority wisely explained: “The better analogy to this case is Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987), where the Court struck down an ordinance prohibiting any ‘First Amendment activities’ at Los Angeles International Airport because the ordinance covered all manner of protected, nondisruptive behavior including ‘talking and reading, or the wearing of campaign buttons or symbolic clothing,’ id., at 571, 575. If a law prohibiting ‘all protected expression’ at a single airport is not constitutional, id., at 574 (emphasis deleted), it follows with even greater force that the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.”

In comparison, the dissent’s position was a great example of the common knee jerk reaction to new technologies sometimes shown by courts and ethics bars across the country, wherein the dissent exhibited a reluctance to adapt to the changing times: “Cyberspace is different from the physical world, and if it is true, as the Court believes, that ‘we cannot appreciate yet’ the ‘full dimensions and vast potential’ of ‘the Cyber Age,’ ibid., we should proceed circumspectly, taking one step at a time.”

Interestingly, this reticence toward embracing new technologies that was expressed by the dissenting justices, Chief Justice Roberts, Justice Thomas, and Justice Alito, is rarely present when those same justices apply emerging technologies to limit constitutional rights, rather than expand them. For example, no such reluctance has been shown when these same justices diminish the Fourth Amendment rights of American citizens, whether it’s permitting the use of technology to enhance the ability of law enforcement to snoop on U.S. citizens or granting law enforcement unfettered investigational access to data stored online. These countervailing approaches to technology by the more conservative members of the court represent a strange, but not entirely surprising, contradiction of ideology, and it’s a trend that I don’t expect will change anytime soon.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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New Jersey judge permits service via Facebook

If you’re a litigator, then I can only assume that by now you fully understand how social media platforms impact your practice. At this point in time, one way or another, you’ve undoubtedly encountered social media issues while representing your clients. Whether it’s crimes being committed using social media platforms, mining social media for evidence, researching jurors on social media, or using social media as a method for service of process, social media crops up in a multitude of ways during the litigation process.

This trend began in approximately 2010, when social media use began to appear in criminal cases as the basis for criminal acts. From there it took a few years before lawyers began to affirmatively use social media on their client’s behalf during litigation matters. I’ve been tracking those trends for some time now, including the use of social media platforms for service of process.

For example, in October 2014, I wrote about two judges who had issued orders permitting service upon litigants using Facebook: a U.S. Magistrate judge for the Eastern District of Virginia (Whoshere, Inc., v. Gokhan Orun d/b/a/ WhoNear) and a New York family court judge (Noel B. v. Anna Maria A., Docket No. F-00787-13/14B). Then, in March 2015, another New York judge jumped on the bandwagon and permitted service via Facebook in a matrimonial case (Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096)).

Last year, I wrote about Ferrerese v. Shaw,15 CV 3738 (ARR) (CLP), where United States Magistrate Judge for the Eastern District of New York, Cheryl L. Pollak permitted an alternate method of service via Facebook, but also required the plaintiff to attempt to effect service using other methods as well.

The issue was addressed even more recently in Axberg v. Langston, Docket No. MRS-C-157 (2016). In this post-adoption case, as reported in the New Jersey Law Journal, Judge Stephan C. Hansbury, Morris County P.J. (ret.), considered the issue of whether service of process could be effected via social media - specifically using Facebook.

In this case, the plaintiffs filed an order to show cause and a verified complaint seeking to restrain the defendant, the purported biological father of their adopted son, from contacting them and/or their son on social media. According to the complaint, the defendant had reached out to their son, his sister, and his adoptive father on Facebook and Instagram, claiming to be his biological father.

After unsuccessfully attempting to serve the defendant via more traditional methods, including regular and certified mail, the plaintiffs sought permission to serve the defendant using Facebook. In reaching its decision, the Court applied the 3-prong test established in Baidoo (above) and determined that the Facebook page in question was the defendant’s, that it appeared to be regularly updated, and due to the unique nature of this case, no other supplemental service method was necessary. Accordingly, the Court concluded that service via Facebook, and Facebook alone, was a sufficient method of service.

Following the Court’s decision, service of process using Facebook was thus accomplished and the defendant soon replied, sending a private message to the plaintiffs counsel on Facebook indicating that he’d received it, stating “I’ll see you in court.” He subsequently appeared via telephone on the return date of the matter.

Another court, another day. Service of process using social media platforms is becoming increasingly common, which is not unexpected. After all, the practice of law can only resist societal changes for so long. Social media is a force to be reckoned with and it’s not going away. Rather than turn a blind eye to it, learn about it and use it to the benefit of your clients. After all, knowledge is power and you have an obligation to provide zealous representation to your clients - something that is impossible to do if you’re not adequately armed with the tools needed to do so.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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NYSBA issues updated social media guidelines for lawyers

I’ve always believed that social media use by lawyers should be treated no differently than any other type of communication by lawyers. After all, online interactions are simply an extension of offline interactions, and the medium doesn’t change the message. For that reason, it has pained me to see so many ethics committees issuing so many opinions over the years on the many perceived nuances of online communication by lawyers.

Many of these opinions are simply unnecessary and constitute knee jerk reactions to a new way of interacting. And many are based on faulty reasoning grounded in the assumption that online communications are somehow different than those occurring offline and thus warrant the application of new, more stringent standards. Others, however, necessarily address issues that are unique to online communications. One good example is opinions that address the issue of whether the passive notifications received by LinkedIn users (who also happen to be jurors) which indicate that a lawyer has viewed their profile constitute impermissible juror contact.

Regardless of whether I agree with the sheer volume of opinions or their merit, the end result is that lawyers are left to their own devices when it comes to reviewing the many opinions and deciphering which types of on online interactions are ethical. Navigating the maze of ethics opinions can be a difficult and overwhelming task and for that reason, some attorneys simply choose to forego using social media altogether.

That’s where the recently updated “Social Media Ethics Guidelines,” issued by the the Commercial and Federal Litigation Section of the New York State Bar Association, come in.

These guidelines were first released in 2014 with the intent to provide lawyers with guidance in navigating the many ethical issues encountered when using social media in a professional context. The Guidelines were revised in 2015 and, then, just 2 weeks ago, a newly updated version of the Guidelines was released.

Some of the more notable revisions include:

Attorney Competence (§ 1.A) reflects that 27 states have adopted some duty of technical competence.

Maintaining Client Confidences (§ 5.E) offers information on how an attorney can respond to online reviews as well as services that offer to import contacts.

Positional Conflicts (§2.E) is new and discusses DC Bar Ethics Opinion 370 regarding whether social media posts adverse to a client’s interest may present a conflict of interest. The revised appendix describes social media terminology and some of the more popular social media platforms.

The newly added social media definitions are particularly useful, and I have to admit that although I’ve always considered myself to be more social media-savvy than most lawyers (having written a book on lawyers using social media), even I learned a few things after reading through the definitions.

So, if you haven’t yet read the updated Guidelines, make sure to set aside some time in order to do so. They provide a very useful, extensive round up of how ethics committees across the country have approached lawyers using social media. The Guidelines are a great resource that will serve as a handy reference guide for your professional online social media activities.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Judges Weigh In On Researching Jurors Online

Now that social media is simply part of our day-to-day lives, it’s no surprise that it’s also appearing in legal cases. Lawyers routinely seek to access social media data during the discovery phase of trial, mine social media for evidence to use during trial, and research jurors prior to voir dire.

In the past I’ve covered the various ethics opinions regarding lawyers mining social media for evidence and researching jurors using social media. New York, D.C., Pennsylvania, Oregon, and quite a few other jurisdictions have addressed these issues. But it’s not just ethics committees that are weighing in on social media use in litigation. Many Judges are throwing their hats in the ring as well and are establishing procedures for their courtrooms that address the use of social media evidence at trial.

Oftentimes judges recognize that online research alone isn’t necessarily problematic. For example, in 2014 it was reported in a Tampa Bay Times article that in a ruling issued by Circuit Judge Anthony Rondolino, he indicated that allowing parties to research jurors online and then share any relevant information obtained with the court could help to avoid mistrials. His rationale was based on the premise that jurors don’t always disclose relevant information during voir dire, although the failure to do so isn’t necessarily intentional and can sometimes arise from a failure to understand the questions being posed to them.

Other judges are more wary of online research when it comes to jurors, such as U.S. District Judge Rodney Gilstrap of the Eastern District of Texas. Earlier this year he issued a standing order that prohibits “all attorneys, parties, and their respective employees and agents, including jury consultants rom contacting jurors through social media.” However, simply researching jurors by viewing public profiles was permitted, even where jurors might receive passive notifications of the viewing of their profile: “(T)hey are not prohibited from conducting or causing another to conduct anytype of online investigation merely because a juror or potential juror may become aware that his or her ESM is being reviewed. For example, lawyers are not prohibited from reviewing the LinkedIn accounts of jurors or potential jurors even if network settings would alert that juror or potential juror to the fact that a lawyer from the case has reviewed his or her LinkedIn account.”

And last, but not least, in 20116, the U.S. District Court for the Northern District of New York, adopted a local rule in early 2016 that allows lawyers and their agents to research jurors using social media so long as the information viewed is publicly accessible. However, the rule provides that passive notifications indicating that a specific person has viewed a juror’s social media profile are not permitted. Importantly, the rule provides that “If an attorney becomes aware of a juror’s posting on the internet about the case in which she or he is serving, the attorney shall report the issue to the court.”

So, the times they are indeed a’changin’, my friends. Social media is here to stay and in many cases, that’s not a bad thing. It can be a valuable tool for litigation purposes, as long as you are aware of the applicable ethical guidelines and rules of court. So use social media to your clients’ advantage, but make sure to use it wisely.

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This site is intended purely as a resource guide for educational and informational purposes and is not intended to provide specific legal advice. This site should not be used as a substitute for competent legal advice from a professional attorney in your state. The use and receipt of the information offered on this site is not intended to create, nor does it create, an attorney-client relationship.

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